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Mr. Borts. Perhaps I was too broad in the statement I made a little while ago that no offices were in force in California. I yield entirely to the statement made by the gentleman from San Joaquim, (Mr. Jones,) because I think it is undeniable that there are some offices which the people have created by election. I never hesitate to admit an error when I discover it; but most unquestionably the gentleman from Sacramento (Mr. Hastings) is right in the reading of this clause ; and it is very plain to see how this error has crept into the Convention. It came from the Committee. Do you not see, sir, what the Committee has done ? Have they ever presented you with an original idea since they have been acting here? They admit it themselves; they have gone to other Constitutions and presented them to you, without any regard at all to California, and the peculiar circumstan. ces under which California exists. What have they done? In their haste they have grabbed up a provision out of a Constitution, where, no doubt, the offices that were brought into existence under the new Constitution were exactly the same that existed under the old, and therefore that Constitution very wisely, inserted this provision, that no inconvenience might result from the change of government. They were offices that were not inimical to the people, and to which the people did not object. Has not the gentleman from Sacramento shown you that offices must be superseded thereby--are bound to be superseded thereby? The very offices created by the people themselves it is intended shall be superseded by the Constitution. If the gentleman wishes to effect what the Committee thought they had effected, he must alter this clause so as to read that they shall not be super. seded thereby, until the laws of this Constitution shall
go into operation. In one part of the sentence they say no office shall be superseded; in another part they tell us about new officers entering upon their duties.
Mr. SHERWOOD. I think the gentleman is entirely mistaken. The section is clear enough. It simply says that upon the going into operation of this Constitution no office is superseded, nor the duties of this office, until the new officers are installed into office under this Constitution. These officers remain until they are superseded. I would leave the question as to the legality of these offices entirely open, to be decided by those who have a right to decide it.
Mr. HALLECK. I rise merely to call attention to this fact. It was said that this section was taken from some Constitution that did not supersede any ofñce. I have looked over the Constitution from which it is taken, and I find that it super. sedes a good many offices. It entirely changes the organization of the courts, and puts out of office innumerable judges. Now it would be rather strange it these officers continue yet in Louisiana, notwithstanding this clause, under the new Con. stitution. I agree perfectly with the gentleman from Sacramento, (Mr. Hastings) in regard to the inconsistency which he points out in this section. I think myself that it requires amendment.
Mr. SHANNON. I think this difficulty can very easily be removed, and I shall move an amendment to the amendment of the gentleman from San Francisco, as follows: to strike out the word “but” after the word “thereby," and insert the word "nor;" strike out the words “ several offices shall remain in full force” and insert the words “same be changed.”
Mr. HALLECK proposed to amend Mr. Shạnnon's amendment, so as to strike out all after the word “thereby,” and insert “nor the laws, relative to the duties of the several officers. be changed, until the entering into office of the new officers to be appointed under this. Constitution;" which Mr. Shannon accepted as a modifica. tion of his amendment.
Mr. Gwin offered the following, which Mr. Halleck said was precisely the same as his :
Strike out the words“ but the laws relative to the duties of the officers to be," and insert in lien thereof the words, “ nor the laws relative to the duties of the several officers be changed until the entering into office of the new officers to be."
Mr. SHANNON then withdrew his amendment, as amended, and the question being on Mr. Gwin's amendment it was agreed to; and the section, as amended, was adopted.
Section 4th of the report being under consideration, as follows :
Sec. 4. The provisions of this Constitution concerning the inability of persons to hold certain offices therein mentioned, shall not be held to apply to officers chosen by the people at the first election, or by the Legislature at its first session.
Mr. Botrs said : There are certain things provided with respect to the inability of certain persons, which I think require amendment. For instance, no person holding an office under the Government of the United States, shall be eligible to office under this Government. Js it intended that the effect of this section shall be, that officers who hold these offices may also hold office under the election held at the first election for officers of this State Government. I think, sir, although that might suit me, it would not suit other gentlemen in this House. I think, for instance, that there is the office of Governor, a very snug little place, and there is the offices of member of Congress and Senator, and there are State officers, judges of the Supreme Court, Attorney General, &c. I think we said a little while ago that no person holding the office of naval storekeeper should be eligible to these offi. ces. I feel personally interested in that matter, and I want to know whether the naval storekeeper can be judge of the Supreme Court or Attorney General.
Mr. JONES. I move to strike out the words "inability of," and insert the words "term of residence necessary to enable.”
Mr. Gwin. I certainly, when this question was before the Committee, never saw any other bearing to it than this : that it was to enable every person who was an elector under this Constitution, to be a candidate for the Legislature, and that members of the Legislature should be eligible to offices under the first Legislature that they are afterwards excluded from by this Constitution. The reason that influenced my mind was, that the members elected to the first Legislature might be the best qualified to fill offices that were to be provided by the Legislature. In the Constitution of Louisiana which has recently gone into operation, there is this provision, Article 146 of the Schedule :
The provisions of Article 28, concerning the inability of members of the Legislature to hold certain offices therein mentioned, shall not be held to apply to the members of the first Legislature elected under this Constitution.
This 28th article of the Constitution of Louisiana, excluded members of the Legislature from holding certain offices, and all the important offices of the State were to be filled. All the important offices of California are to be filled by the Legislature ; Judges of the Supreme Court, Attorney General, Surveyor General, Treasurer, Secretary of State, &c. It was intended that the members of the first Legislature should not be excluded from holding these offices. There are certain qualifications as to residence; and it was intended that it should not apply in the first election ; that any man who could vote at the first election, could be a candi. date for the Senate and House of Representatives. That was the bearing of the section in my mind when it was before the Committee. If the gentleman (Mr. Botts) offers any amendment providing for what he deems the difficulty, I am willing to vote for it.
The question was taken on laying the section on the table for future considera. tion, and decided in the negative.
Mr. JONES inquired in what section of the Constitution the provision in relation to the inability of members of the Legislature was contained. He thought by comparing that and the section under consideration the House might be able to arrive at some satisfactory result.
Section 20, of the Legislative Department was then read, as follows: Sec. 20. No Senator, or member of Assembly, shall, during the term for which he shall have been elected, be appointed to any civil office of profit, under this State, which shall have been created, or the emoluments of which shall have been increased, during such term, except such office as may be filled by elections by the people.
Mr. HALLECK explained the object of the section under consideration, (sec. 4.) It was intended to obviate questions in regard to the eligibility of existing officers of the country. He thought it should be so amended as to include all. A judge could not be elected to the Legislature if the amendment of the member from San Joaquin prevailed.
Mr. BOTTS would simply remind the gentleman that although there might be some difficulty about excluding so good a man as a judge from the Legislature, that evil was more than counterbalanced by admitting the navy agent to hold office under this Constitution, which he would be if the clause was adopted as it stood. He thought, however, that it was best to exelude both judge and navy agent.
Mr. HASTINGS. I am aware that in our vicinity here, and perhaps throughout the whole House, there is a great disinclination to make any invasion upon
the report of the Committee; therefore, being afraid that perhaps this may be voted down, I will say a word. Most certainly every member of the House will see that the section as it now stands would not at all accomplish the object that the Committee had in view, and that the Committee committed a great oversight. “The provisions of this Constitution concerning the inability of persons to hold certain offices therein mentioned, shall not be held to apply to officers chosen by the people at the first election, or by the Legislature at its first session.”
Now, the laws in this Constitution relative to the inability of persons to hold office are not to apply at the first election. It is provided in this Constitution, that any person guilty of bribery, or a man who fights a duel, is thereby rendered incompetent to hold any office of trust or honor. But he may receive a bribe, or fight a duel, with impunity, previous to the first election. This section gives him that privilege. If he has been convicted of any infamous crime it amounts to the same thing.
Mr. Gwin. I second the amendment of the gentleman from San Joaquin, (Mr. JONES,) which I think covers the whole ground, with the further amendment" or the office."
Mr. STEUART. I really think this is a very important matter. I do not see that either of the amendments covers the whole ground. I move that the section be laid by for a little while in order that it may be properly considered and acted upon.
The question was then taken on Mr. Jones's amendment, and it was adopted, and the 4th section, as amended, was adopted.
Section 5 was then adopted, as reported, viz:
Sec. 5. Every citizen of California, declared a legal voter by this Constitution, and every citizen of the United States, a resident of this State on the day of election, shall be entitled to vote at the first general election under the Constitution.
Section 6, as reported by the Committee, was then taken up as follows, viz:
Sec 6. This Constitution shall be submitted to the people for their ratification or rejection, at the general election to be held on Tuesday, the sixth day of November next. The Executive of the existing government of California shall issue a proclamation to the Prefects of the several districts, or, in case of vacancy, to the Sub-Prefects, requiring them to cause sach election to be held on the day aforesaid, in their respective districts. The election shall be conducted in the manner which was prescribed for the election of the delegates to this Convention, except that the Prefects or Sub-Prefects ordering such election in each district, shall have power to designate any additional number of places for opening the polls, and that in every place of holding the election a regular poll list shall be kept by the judges and inspectors of elections. It shall be the duty of these judges and inspectors of elections, on the days aforesaid, to receive the votes of the voters qualified to vote at such election. ' Each voter shall express his opinion by depositing in the ballot-box a ticket whereon shall be written "For the Constitution,” or “ Against the Constitution," or some such words as will distinctly convey the intention of the voter. These judges and inspectors shall also receive the votes for the several officers to be voted for at said election, as herein provided. At the close of the election the judges and inspectors shall carefully count each ballot, and forthwith make duplicate returns thereof to the Prefect (or Sub-Prefect, as the case may be) of their respective districts, and said Prefect or Sub-Prefect shalt transistit one of the same by the most safe and rapid
conveyance, to the Secretary of State. Upon the receipt of said returns, or on the 7th day of December next, if the returns be not sooner received, it shall be the duty of a Board of Canvassers, to consist of the Secretary of State, one of the Judges of the Superior Court, the Prefect, Judge of First Instance, and an Alcalde of the district of Monterey, or any three of the aforementioned officers, in the presence of all persons who choose to attend, to compare the votes given at said election, and to immediately publish an abstract of the same in one or more of the newspapers of California.
Ir. BOTTS. I think this section has been taken again at random from some Constitution where the state of things is altogether different from that which ex. -ists in California. To say that the Executive of the existing government shall cissie à proclamation, may be a very proper way for the people of Louisiana or New York to talk to their Governor, whom they make, and who is under their control, and it would be a very proper way for us to talk to our Governor if he was under our control,
but I do not feel authorized bere to give any directions to the Executive of this Territory, nor do I think such an order would come with much propriety from this body. The Executive of the existing government of California has proclaimed to the people of California that he is instructed to prevent the existence of a government here under the circumstances that we propose to bave this government. Such a proclamation is issued from him—I do not know how much, as an individual, he is with us in this matter, but he tells us, that as an of. ficer of the Government, the action of Congress is necessary to render this a gov. ernment. There is a great want of delicacy in asking that gentlemen under these circumstances to take any hand at all in this matter ; but, sir, I think it is an unheard of impropriety to command him to do it. I therefore, at least, propose to amend the words of the section by saying that the Executive of the existing government of California “shall be requested to issue a proclamation.” Unless I have evi. dence on this floor that he is willing to issue such a proclamation, I will not even request him to do it. But if he is willing, there is no man in the land of whom, I would sooner ask a favor than of that gentleman, for it is certainly a favor. , You have no right to make such an application to an individual in this land, not known to this Constitution ; you have not a Governor at all under this Constitution. If he is a Governor, he is a Governor by other authority than that created by you. I move, therefore, to amend by saying " the existing Governor shall be requested to issue a proclamation.
Mr. HALLECK. I think the amendment of the gentleman from Monterey is a very proper one ; but whether you say shall do it, or shall be requested, I can assure him that the gentleman to whom he refers, will do it.
Mr. Gwin. I think it very important that we should leave nothing to contin. gencies here. I have heard General Riley say in private conversation, that he will issue such a proclamation ; but I think there should be no doubt on the subject. By some contingency that we know not of, he might refuse to do it, and this is what I think should be provided against.
Mr. HASTINGS. Suppose the Executive should decline to issue this proclama.. tion, or another Executive takes the place of this one, and he is not willing to ac.. knowledge our right to make this order. These are contingencies that we must provide for. We have no certainty that in November the same Executive will be here, or that the feelings of the present Executive will be the same. Now, to request the Executive, whoever be may be, is still leaving the matter entirely doubt. ful. Although we have assurance that General Riley will do it, we have no as. surance that any other Governor will do it, should there be another placed in the office. If gentlemen will provide for that contingency, I will be in favor of the motion.
Mr. SHERWOOD. If such casualties should occur, of course the election would nevertheless, be held, because we say expressly such an election shall be held on the 7th of November. It would be precisely the same case of interregnum that is always provided for. The prefects would go on as if there was a Governor.
Mr. Gwin. I move to insert the following:
That the President of the Convention shall issue a proclamation in the event of the Governor refusing to do it.
Mr. BOTTs. I would rather not anticipate such an event. I therefore prefer not accepting the amendment.
Mr. JONES. If the election should take place on the 7th day of November, it would not give time to print the Constitution and send it down to Los Angeles and San Diego. Even if they had time at Los Angeles to consider the effect of this Constitution, here is another difficulty. Upon the 7th day of December, if the re. turns are not received sooner, the Secretary must count them, and upon the 15th day of December, the Legislature must hold its session. That will give only
seven days for the members from Los Angeles to arrive at the seat of Government ; and if it be necessary for the Secretary to issue certificates of election to the persons elected, he will have no time. In the districts of San Joaquin and Sacra
mento where the difference between the precincts is great, and the means of com'munication limited, it would be very difficult for a member to know whether he was elected or not, and perhaps some intimation from the Secretary might be neces. sary. At all events, the members from Los Angeles have only seven days to come to the place of the Legislature. I think they ought to have at least two weeks.
Mr. TEFFt. I think if the gentleman will look at that section he will see that the difficulty is provided for in requiring the duplicate returns of the election to be returned to the Prefect, so that the candidate elected can ascertain as to his elec. tion from the Prefect.
Mr. JONES. That avoids the difficulty."
Mr. Borts. I rise simply to suggest a modification of the words which I origi. nally moved. I think it better than the original. Strike out the words “shall issue a proclamation to," and insert "is hereby requested to issue a proclamation to the people of California, directing,” and further to amend, by striking out the words " to " and "requiring."
Mr. Gwix. Before we go into that, there is something more important which we ought to settle. Whether we hold this election on the 7th day of November or not, I think the gentleman from San Joaquin (Mr. Jones) is mistaken in regard to the difficulty. I do not object to the election on that day, because the sooner we put this government in operation the better, and I have received assu. rance that this Constitution can be printed and placed in the hands of the people in time for them to vote upon it by the 7th of November. I am satisfied with that, although I would prefer a longer time. But, sir, I wish to call the attention of the Committee to this fact: that if the election takes place on the 7th of No. vember, the Legislature should meet at an earlier day than the 15th of December. It is absolutely necessary. I believe, sir, that it is a matter of the greatest importance to California, inasmuch as we have determined to put this govern. ment in operation forth with, that the representatives from California should appear in the Congress of the United States at the earliest practicable period ; and if we hold our election on the 7th of November, I believe that the Legislature ought to meet on the fourth Monday of November, which is the 27th. That gives three weeks ; and the members can be notified of their election by the Prefects in the several districts, giving sufficient time for them to attend at the seat of government. The reason why I conceive this to be so important is this: on the 7th of November we elect two members of Congress. It is well known, that on the 1st of December, before the steamer sails, it can be ascertained to a certainty that there are two members of Congress elected, and it would be the duty of these two members of Congress to proceed forth with to Washington City. But, sir, that would be only half a representation of the State, unless the Senators should 'go on at the same time. I know that this section provides that the canvass of votes cannot take place till the 7th of December---so late that the members